Fattal v. Leye
Passenger Fattal alleged that she sustained personal injuries in a car accident while in a cab that was rear-ended by co-defendant’s taxi. Varaitch moved to dismiss the complaint alleged Fattal did not sustain a “serious injury” as defined by Insurance Law §5102(d). Fattal served an unrelated cross-motion for summary judgment on the issue of liability. The court initially found defendants met their prima facie burden through affirmed independent medical exam reports of Drs. Decter and Singh who opined Fattal had degenerative changes, but full range of motion, noting bulges in the cervical and thoracic spine, among other things, were not accident related. Also, Fattal’s medical records revealed she had full range of motion barely 10 months after the accident. The court found Fattal’s medical expert’s conclusory and speculative affirmation failed to raise an issue of fact sufficient to defeat summary judgment. It stated she failed to submit recent exam results to rebut defendants’ experts’ findings of full range of motion, noting even if radiology reports submitted were admissible, they did not state any abnormalities found were traumatically caused by the accident. Thus, the court granted defendants’ motion for summary judgment.